The State of Western Australia v Ratcliff - [2021] WASC 96

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RATCLIFF [2021] WASC 96
CORAM:   QUINLAN CJ
HEARD:   26 MARCH 2021
DELIVERED          :   26 MARCH 2021
PUBLISHED           :   7 APRIL 2021
FILE NO/S:   SO 1 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

ALAN DAVID RATCLIFF
Respondent

Catchwords:

Criminal law - High Risk Serious Offenders Act 2020 (WA) - Preliminary hearing - Whether reasonable grounds for belief that restriction order might be made - Interim detention order - Turns on own facts

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Interim orders granted

Category: B

Representation:

Counsel:

Applicant	:	T W McPhee
Respondent	:	S Rafferty

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Seamus Rafferty & Associates

Case(s) referred to in decision(s):

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Ratcliff [2021] WASC 31
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

On 28 January 2021, the State of Western Australia applied for a restriction order in respect of Alan David Ratcliff under the High Risk Serious Offenders Act 2020 (WA) (the Act).
In the application the State applied for interim orders, pursuant to s 46(2) of the Act, including orders that:
(a)Mr Ratcliff undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used on the hearing of the restriction order application; and
(b)Mr Ratcliff be detained in custody until the hearing of the restriction order application (or alternatively that he be subject to an interim supervision order).
Each of these orders (save for an interim supervision order) can only be made if the court is satisfied, pursuant to s 46(1) of the Act, that there are reasonable grounds for believing that the court might find that the person is a high risk serious offender. The determination of that issue is the main purpose of a preliminary hearing under the Act.
At a directions hearing on 4 February 2021, the State made a further application, namely that Mr Ratcliff be subject to an interim supervision order pending the determination of the preliminary hearing. That application was made because Mr Ratcliff was, at that time, serving a term of imprisonment that was due to expire on 11 February 2021, in circumstances in which the earliest date upon which the preliminary hearing could be listed was 19 March 2021. There is, in this context, no power to make an interim detention order pending the determination of a preliminary hearing.
The application for an interim supervision order was heard by Derrick J on 10 February 2021.[1] Mr Ratcliff, who was not represented, opposed the application. His Honour granted the application and made an interim supervision order pending the determination of the preliminary hearing, which was listed for hearing on 19 March 2021.
[1] The State of Western Australia v Ratcliff [2021] WASC 31.
On 19 March 2021, when the preliminary hearing was called on before Smith J, Mr Ratcliff did not appear. Her Honour was informed that Mr Ratcliff had, apparently, cut and removed his GPS monitoring anklet and was yet to be located by the authorities. There being no other action her Honour could take, Smith J adjourned the preliminary hearing.
According to the affidavit material since filed with the Court, at approximately 4.00am on 20 March 2021, Mr Ratcliff was located approximately 20 kilometres from the South Australian border. He was arrested and taken into custody. Mr Ratcliff has since been charged with a number of offences and remains in custody. He has not applied for bail.
The preliminary hearing came on before me on 26 March 2021.
On that date the State sought to have the preliminary hearing adjourned to 23 April 2021, but sought an order that Mr Ratcliff be detained in custody pending the final determination of the preliminary hearing. As I have noted above, the interim detention order could only be made if the threshold test (that there are reasonable grounds for believing that the court might find that Mr Ratcliff is a high risk serious offender) was satisfied.
Mr Rafferty, who appeared for Mr Ratcliff on 26 March 2021, conceded that the threshold issue had been met and that it was appropriate that I make the interim order pending the hearing on 23 April 2021 (by which time Mr Rafferty will have been able to take Mr Ratcliff's instructions). That concession was entirely appropriate and I therefore made the orders sought by the State, with reasons to be given later.
These are my reasons.
As noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find the person the subject of the application is a high risk serious offender.
That is a low threshold. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[2]
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
I am so satisfied in relation to Mr Ratcliff.
For the purposes of the preliminary hearing, the State principally relied on an affidavit of Thomas William McPhee sworn 27 January 2021. That affidavit sets out Mr Ratcliff's criminal history and a number of previous reports in relation to him (including psychiatric and psychological reports).
The State also relied on several affidavits concerning more recent information as to Mr Ratcliff's living arrangements, and the allegation that he cut off his GPS anklet, including:
(a)an affidavit of Detective Sergeant Matthew John Daly, of the Sex Offender Management Squad of the Western Australia Police Force, sworn 24 March 2021;
(b)an affidavit of India Ahalya Allegakoen, a Senior Law Clerk with the State Solicitor's Office, sworn 23 March 2021;
(c)three affidavits of Jodii Jennifer Nichols, a Senior Community Corrections Officer, affirmed 16, 19 and 22 March 2021; and
(d)an affidavit of Nadine Christina Minnock, Acting Team Leader within the Corrective Services Division of the Department of Justice, affirmed 17 March 2021.
That evidence reveals the following.
Mr Ratcliff has a significant history of sexual offending for which he first received a term of imprisonment in 1994. He was again convicted of sexual offences (including indecent dealing) in 1997, 2004 and 2008. Save for the offences in 1997, which concerned offences committed against a former partner, Mr Ratcliff's previous sexual offending has been committed against children.
In 2011, EM Heenan J declared that Mr Ratcliff was a serious danger to the community within the meaning of the former Dangerous Sexual Offenders Act 2006 (WA) (DSO Act), and placed Mr Ratcliff on a five-year supervision order.
The psychiatric reports in relation to Mr Ratcliff at the time of the application under the DSO Act (from Dr Mark Hall and Dr Gosia Wojnarowska) diagnosed Mr Ratcliff with, among other things, paedophilia, alcohol dependence and antisocial personality disorder. Both psychiatrists expressed the opinion that Mr Ratcliff was at a high (or very high) risk of reoffending sexually if not subject to an order under the DSO Act.
Mr Ratcliff completed the five year supervision order under the DSO Act without committing a further sexual offence, although he was convicted of a number of failures to comply with his reporting obligations. That break in Mr Ratcliff's sexual offending (for in excess of 10 years) came to an end when, on 8 August 2019, Mr Ratcliff was found to be in possession of child exploitation material on a laptop and portable hard disk drive.
On 24 March 2020, Mr Ratcliff pleaded guilty to, and was convicted of, two offences of possessing child exploitation material contrary to s 220 of the Criminal Code. A pre-sentence report that was prepared for the purposes of sentencing Mr Ratcliff for those offences included the following assessment:
In considering Mr Ratcliff's risk of reoffending, his risk factors appear to be sexual preoccupation and sexual attraction to children, alcohol use, poor impulse control, or emotional management and limited prosocial supports. Mr Ratcliff has previously participated in a number of group and individual treatment interventions pertaining to sexual offending and alcohol dependence and although he was able to verbalise strategies he had learnt and developed through his participation in these therapeutic interventions, it remains of concern that he failed to apply these strategies prior to or around the time of his current offending. Furthermore, Mr Ratcliff stated during interview that he was not willing to participate in any further forms of interventions or community supervision, stating his intention is to see his daughter in Western Australia briefly before leaving the state. Given this, coupled with his extensive history of sexual offending, Mr Ratcliff is assessed as being at an elevated risk of reoffending in a similar manner at the current time.
Mr Ratcliff was sentence to a total effective sentence for those offences of 15 months imprisonment.
It does not appear that Mr Ratcliff received any further treatment during that term of imprisonment, although the evidence before me includes a Treatment Assessment Report dated 21 August 2020. That report concluded that Mr Ratcliff remained at a high risk of further sexual offending and recommended that he participate in sex offending and addiction programs.
Finally, of course, following his release from custody on 11 February 2021, Mr Ratcliff was subject to an interim supervision order under the Act. As I noted at the commencement of these reasons, according to the affidavit material before me (which, I stress, has yet to be tested in any way), Mr Ratcliff breached that order, by removing his GPS device and fleeing to the South Australian border. While no final conclusion can be reached in relation to those events at this time, if it does prove to be the case that Mr Ratcliff breached the order in this way, it does not augur well for his prospects of resisting the conclusion that he is a high risk serious offender.
Given Mr Ratcliff's history of offending, and the fact that the most recent reports indicate that he remains at a high risk of reoffending, I am satisfied that there are reasonable grounds for believing that the court might find him to be a high risk serious offender.
I therefore made an interim detention order and adjourned the preliminary hearing, part-heard, to 23 April 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
7 APRIL 2021